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ELCPartially AllowedLand Case 49 of 2020· [2023] KEELC 18858 (KLR)

Vale Royal Trust & another v Rwika Aggregates Company Ltd & 6 others

Environment and Land Court
17 July 2023
LOL. A. Omollo
3,927 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a lawsuit to be updated mid-trial to reflect a new parcel number, ruling that mere inconvenience doesn't justify blocking amendments.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) on the Plaintiffs' Notice of Motion dated 24th May 2022 seeking leave to amend their plaint dated 31st August 2020. The Plaintiffs, Vale Royal Trust and Delamere Estates Ltd, sued Rwika Aggregates Company Ltd and six others, seeking declarations that they are sole proprietors of L.R No 9362/5 (approximately 42,563 acres), that allotment letters issued to the 1st Defendant were void ab initio, and permanent injunctions. After the Plaintiffs' case had partly been heard, they learnt the suit property had been sub-divided - partly through compulsory acquisition for a road and partly by their own excisions - so that L.R 9362/5 no longer existed and a new title, L.R No 9362/7, had been issued. They sought to amend the plaint to reflect the new parcel number. The 1st Defendant opposed, questioning the deponent's authority, the existence of the new title, and alleging bad faith and deliberate delay. The court framed one issue: whether leave to amend should be granted. Applying Order 8 Rule 3 and the principles in Elijah Kipngeno Arap Bii, Grantham, Eastern Bakery and Lucia Kibui Muchiri, the court held the amendment was made in good faith, caused no prejudice beyond inconvenience compensable by costs, and was necessary to create a nexus between the parcel as previously known and as currently described. Leave was granted, with corresponding leave for the Defendants, the Plaintiffs bearing their own costs and paying the 1st Defendant thrown away costs of Kshs. 15,000.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

The application was made in good faith, caused no prejudice to the 1st Defendant beyond compensable inconvenience, and was necessary to reflect the new parcel number; leave was granted.

Reasoning

The court applied Order 8 Rule 3 and the principles in Elijah Kipngeno Arap Bii, Grantham, Eastern Bakery and Lucia Kibui Muchiri. The Plaintiffs explained the suit property had been sub-divided and a new title, L.R No 9362/7, issued; the amendment merely updates the parcel description. The 1st Defendant alleged bad faith and delay but showed no prejudice beyond inconvenience, which costs can compensate. The authority of the deponent had already been resolved in an earlier ruling after cross-examination.

02

Costs of the application

Holding

Costs follow the event under Section 27 of the Civil Procedure Act, but because the application inconvenienced the 1st Defendant, thrown away costs of Kshs. 15,000 were awarded to it and the Plaintiffs ordered to bear their own costs.

Reasoning

The court noted the general rule that costs follow the event and that a successful party should ordinarily get costs unless the court for good reason directs otherwise. Observing that the application caused a setback and greatly inconvenienced the 1st Defendant, the judge awarded thrown away costs of Kshs. 15,000 rather than full costs.

p. 8

Legal principles established

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  • The court may at any stage of the proceedings, on just terms, allow any party to amend his pleadings
  • Inconvenience caused by an amendment is not a ground to refuse it where the other side can be compensated by costs
  • An amendment changing the description of the disputed parcel to create a nexus between the parcel as previously known and as currently described should be allowed

Court orders

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  1. 1.Leave granted to the Plaintiffs/Applicants to amend their plaint dated 31st August, 2020 in terms of the draft Amended Plaint annexed to the application
  2. 2.The Amended Plaint to be filed and served within 7 days from the date of the ruling
  3. 3.The Defendants granted corresponding leave to amend their pleadings within 14 days upon service of the Amended Plaint
  4. 4.The Plaintiffs to bear their own costs of the application
  5. 5.The Plaintiffs to pay the 1st Defendant thrown away costs of Kshs. 15,000

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 100, 27
  • Civil Procedure Rules, 2010Order 8 Rules 3, 4, 5, 8
  • Registration of Title OrdinanceCap 160

Cases cited (9)

  • Central Kenya Limited vs Trust Bank and 4 Others
    CA No. 22 of 1998 (2000) KLR

    Amendments should be freely allowed at any stage if necessary for determining the real question in controversy

  • Elijah Kipnegeno Arap Bii vs Kenya Commercial Bank Limited
    [2013] eKLR

    Restated principles on amendment of pleadings from Bullen and Leake

  • Institute for Social Accountability and another vs Parliament of Kenya and 3 others
    [2014] eKLR

    Principles for determining an application for leave to amend

  • Lucia Kibui Muchiri vs Kotton Mwandabe & Another
    [2016] eKLR

    Amendment changing description of disputed parcel should be allowed for just determination

  • Daniel Ngetich & Anor Vs K-Rep Bank Limited
    [2013] eKLR

    Leave to amend should not be granted where it would cause injustice or abuse court process

  • Kassam v Bank of Baroda
    [2002] eKLR

    Late amendment allowed only if applicant explains the delay and shows it was not deliberate

  • Joseph Ochieng & 2 others v First National Bank of Chicago

    Quoted in Bii on principles of amendment of pleadings

  • David Jonathan Grantham & Another –Vs National Social Security Fund
    [2007] eKLR

    Court can allow amendments at any stage; tests of timeliness, good faith, costs, materiality

  • Eastern Bakery –vs Castelino
    [1958] E.A 461

    Amendments before hearing freely allowed if no injustice; no substitution of distinct cause of action

Jurisdiction invoked
Sections 3, 3A and 100 of the Civil Procedure Act (Cap 21) and Order 8 Rules 3, 5 & 8 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Vale Royal Trust & another v Rwika Aggregates Company Ltd & 6 others", Case Analysis (2023). Land Case 49 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18858/eng@2023-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.